Judicial Backlash or Just Backlash? Evidence from a National Experiment

When the Supreme Court decides a controversial issue, does it generate a distinctive public backlash? Or would a similar decision by Congress generate a similar reaction? Surprisingly, although these questions pervade debates over constitutional law, little direct empirical research exists about this question. Indeed, very little in the way of empirical research exists about which institution citizens prefer to make a given constitutional decision, let alone how citizens go about contemplating these issues. To help remedy this, we conducted an experiment. Half of study subjects were assigned to a condition in which a constitutional right to gay marriage was protected, and the other half were assigned to a condition in which a constitutional right to carry a concealed weapon was protected. Half of each of those groups of subjects was told that the Court, and the other half that Congress, had decided the issue. We hypothesized that people develop beliefs about the competence of institutions and generate preferences for institutions by assessing whether that institution will reach a decision that supports or threatens their worldview. We also hypothesized that citizens would become more extreme in their beliefs about the underlying constitutional issue in reaction to a Supreme Court decision. The study results support these hypotheses. Conducted just prior to the midterm congressional elections in the fall of 2010, the study also provided evidence of distinctive effects on voting intentions. Our results complicate standard accounts of institutional choice that purport to rely on preferences independent of a particular outcome on controversial constitutional matters. Our results also have important implications for government actors, advocates in social movements, and constitutional theorists.